Tileston v. Ullman, 318 U.S. 44 (1943)

In the 1920s and 1930s, Birth Control advocates worked unsuccessfully to repeal a Connecticut law banning the use of contraceptives and prohibiting doctors from giving assistance or counsel in their use. In 1940, the state supreme court rejected their legal challenge to the law in State v. Nelson (126 Conn. 412, 11 A.2d 856, 1940), which resulted in the closing of the few Birth Control clinics that had been opened briefly in the state.

Shortly after that loss, the advocates recruited Wilder Tileston, a quiet sixty-five-year-old Yale Medical School professor and private practitioner in New Haven, to help them with another lawsuit. Tileston found three patients for whom pregnancy would be very harmful or even fatal. Without naming the patients as parties, Tileston’s lawyers filed suit in state court. They named as the defendant New Haven County State’s Attorney Abraham S. Ullman. Tileston’s complaint argued that the state law violated the Connecticut Constitution and the U.S. Constitution, including the Fourteenth Amendment, by depriving Tileston’s patients of ‘‘life’’ without due process of law and by depriving Tileston of ‘‘property’’— the privilege of practicing his profession as a doctor—without due process. The Connecticut Supreme Court, in a three-to-two decision, rejected Tileston’s claims and advised that his patients abstain altogether from sex in order to avoid harmful pregnancy.

As the case reached the Supreme Court for oral argument in January 1943, the only claim under consideration was the one based on the danger the Connecticut law posed to Tileston’s patients. At oral argument, the justices were immediately skeptical of the likelihood of enforcement against Tileston’s patients and of Tileston’s attempt to defend the putative constitutional rights of his patients. Very little of the oral argument even addressed the substance of Tileston’s appeal.

The Supreme Court unanimously dismissed the appeal on February 1, 1943, concluding that Tileston had no standing to assert the rights of his patients. In its very brief per curiam opinion, the Supreme Court noted that there were ‘‘no allegations asserting any claim under the Fourteenth Amendment of infringement of appellant’s liberty or his property rights.’’ The only basis for the Fourteenth Amendment claim was the law’s threat to the life of Tileston’s patients, obviously not to Tileston’s life. Thus, the Court did not address the merits of Tileston’s substantive due process claim.

After this defeat, Birth Control advocates in Connecticut continued for the next twenty-two years to urge the state legislature to repeal the anticontraceptives law. But the state legislature, disproportionately controlled by representatives from rural and heavily Catholic districts, rebuffed these attempts. Birth Control advocates would also try again in the courts, reaching the Supreme Court in 1961 in Poe v. Ullman (367 U.S. 497, 1961) where they would once again lose on technical grounds.

Finally, in 1965, the Supreme Court heard the constitutional merits of their complaint against the Connecticut law in Griswold v. Connecticut (381 U.S. 479, 1965). In that decision, the Court held that the Connecticut law was indeed unconstitutional as a violation of the right to privacy.

DALE CARPENTER

References and Further Reading

• Garrow, David J. Liberty & Sexuality: The Right to Privacy and the Making of Roe. v. Wade. New York: Macmillan, 1994, pp. 94–105.

Cases and Statutes Cited

• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Poe v. Ullman, 367 U.S. 497 (1961)
• State v. Nelson, 126 Conn. 412, 11 A.2d 856 (1940)
• Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582 (1942)

See also Due Process; Griswold v. Connecticut, 381 U.S. 479 (1965); Poe v. Ullman, 367 U.S. 497 (1961); Reproductive Rights